Is there tension between the enforcement of patent rights and promotion of competition policy in South Africa?
Date
2023
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Witwatersrand, Johannesburg
Abstract
This research report examines the intersection between competition law and patent law. In particular, it examines the abuse of patent rights by dominant players that hinder access to life- changing products. It evaluates the potential tension between protecting patent rights and promoting competition, which raises concerns about equitable access to lifesaving products. Vertical and horizontal prohibited practices, including patent pools, cross-licensing agreements, and pay-for-delay settlements are also discussed, in terms of both encouraging co- operative opportunities benefitting society while also posing the risk of creating platforms for collusion that could lead to price fixing and market allocation for competing patented products. The focus for the South African competition authorities has been on addressing abuse of dominance by patent holders, particularly regarding excessive pricing and equitable access to
patented life-saving medicines and vaccines. This research report examines the case law onexcessive pricing and dominant firms' refusal to license patents patented medications, resulting in Competition Commission investigations. This report also addresses equitable access to life- saving medicine, particularly during the COVID-19 pandemic, including South Africa's request to the World Trade Organisation for a TRIPS waiver for patented COVID-19 vaccines. The
research report concludes that while there is tension between these areas of law, competition plays a vital role in promoting fair pricing of, and equitable access to, life-saving patents
Description
A research report submitted in partial fulfillment of the requirements for the degree of Master of Laws by Coursework and Research Report at the University of the Witwatersrand, Johannesburg, 2023
Keywords
Competition law, Patent law, Protecting patent rights, Patent pools, South African competition authorities, COVID-19 pandemic, UCTD, Competition policy in South Africa?
Citation
Sham-Guild, Julia. (2023). Is there tension between the enforcement of patent rights and promotion of competition policy in South Africa? [Master’s dissertation, University of the Witwatersrand, Johannesburg]. WireDSpace. https://hdl.handle.net/10539/38654